The Patient Protection and Affordable Care Act (PPACA) includes a so-called “individual mandate,” which is actually a tax that must be paid by individuals who fail to meet a minimum level of health insurance coverage. This mandate is the focus of challenges to the law. Without the mandate, the law’s protection of people with preexisting conditions would mean that healthy people could wait until they get sick to buy insurance. Because insurance pools rely on cross-subsidization of sick people by healthy participants, this would bankrupt the entire health insurance system. The individual mandate charges those people for at least some of the costs they impose on their fellow citizens. Massachusetts, acting a few years before the federal law, combined its guarantee of coverage with a mandate, but seven other states tried to protect people with preexisting conditions without mandating coverage for everyone. The results in those states ranged from huge premium increases to the complete collapse of the market.

Two federal district judges have declared this provision unconstitutional. The novel approach to constitutional law that they propose would misread the Constitution, betray the intentions of the Framers, and cripple the nation’s ability to address one of its most pressing problems.

The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.

Part I of this Essay presents a brief explanation of why Congress has the power to enact this law. Part II rebuts the constitutional objections. Part III offers what the law’s opponents have demanded: an account of the limits of congressional power. Part IV explains why federal action was necessary in this case. Part V critiques the radical libertarianism that underlies the constitutional case against the law, a case that is encapsulated in the notorious “Broccoli Objection.” Part VI concludes.

The problem of insuring those with preexisting conditions could be addressed with a single-payer insurance system of the kind that exists in Canada, France, England, the Netherlands, and Australia. In such systems, everyone gets insurance provided by the government, funded by general taxation. The American government already forces you to buy single-payer insurance against poverty in your old age: Social Security. A similar single-payer system of medical care makes a great deal of sense, but too many powerful interests were arrayed against it for it to have any hope of enactment. Political obstacles aside, Congress is entitled to decide that a government monopoly of health provision would be inefficient and that insurance is best provided by the private sector. In that case, the only way to guarantee health insurance for everyone is to require the healthy to purchase private insurance. The remedy tightly fits the problem.

Thus, for example, even though the Constitution mentions no federal crimes other than counterfeiting, treason, and piracy, Congress has broad authority to enact criminal statutes. The Constitution does not mention the individual mandate either, but Congress nonetheless has broad authority to impose monetary costs on those who choose to go without insurance.

II. The Purported Constitutional Limitations

Now that I have laid out the simple case for the bill’s constitutionality, I will take up the objections that claim to complicate that case.

A. The Commerce Power

The principal complaint about the mandate is that Congress should only be able to regulate economic activity, and the mandate is not a regulation of any activity. David Rivkin and Lee Casey object that it will “apply to every American simply because they exist.” But for reasons already explained, unless free riders are brought into the system, there is no way to insure everyone else. The Virginia judge, Henry Hudson, nonetheless declared that in order to be subject to regulation by Congress, an individual had to engage in “some type of self-initiated action.” The Florida judge, Roger Vinson, similarly argued that failure to purchase health insurance is “inactivity” and that Congress cannot regulate inactivity.

Vinson did suggest a more definite limitation on Congressional power: the Necessary and Proper Clause cannot be invoked if the problem Congress is trying to address is Congress’s own fault. Here is the argument:

If, however, Congress has no power to address negative consequences that follow from its own statutory scheme, then Chief Justice Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable documents would not be gathered together in one place. But, you might say, That is crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side effects, which then must be addressed. If, as Judge Vinson admitted, Congress can also decide that people with preexisting conditions can be protected, then these cases are indistinguishable.

There may be no need for judicially imposed limits on Congressional power. There were practically no such limits between the 1930s and the 1990s, yet the federal government did not take over all state functions: tort law, contract law, criminal law, and education remained dominated by state law. Lopez imposed a new restriction, though its contours remain uncertain. The Lopez Court thought it relevant that Congress was trying to regulate noneconomic activity, and the Court later suggested in United States v. Morrison that Congress has broad authority over the economy. This economic/noneconomic test supports the 1944 holding that Congress can regulate insurance.

A better rule would implement the line that the Framers of the Constitution drew—a line that has nothing to do with the activity/inactivity distinction, although it supports congressional regulation of the economy. This line also supports the mandate.

This approach justifies congressional authority over the economy, even in its local incidents, because the United States in fact has a single unified economy. You may, however, wonder whether health care reform happens to be another unnecessary centralization of an area that states were handling perfectly well. If it is, this might raise doubts about the Court’s decision—which, I emphasize, is settled law—to concede to Congress’s broad economic authority, and perhaps would even justify a reshaping of settled law to put a stop to this centralization. I now address this concern.

IV. Why Congressional Action Was Necessary

One thing that the Framers did not anticipate was the spectacular advances of the past two hundred years in our capacity to treat disease, prolong life, and ameliorate congenital illness. Many of these innovations are expensive. So with modern medicine comes a new kind of moral horror: the patient with a treatable disease who cannot afford to pay for the treatment.

The spillover effects are clear. Individuals with preexisting conditions are deterred from pursuing new opportunities in states where insurers are allowed to deny them coverage. Those with preexisting conditions whose jobs provide insurance are locked into those jobs: they are afraid to move to a different employer or to start their own businesses. Both of these effects burden the American economy as a whole.

Health insurance regulation also presents a collective action problem. The reform of the American health care system to ensure that no one would be uninsurable or bankrupted by illness was too big a task for the states to address individually. It requires more regulatory skill than most states can muster.

How can we know that collective action problems are the reasons why states have not undertaken massive health care reform? Could it not rather be evidence that local preferences are different in different places and that federalism has enabled variation of a benign sort?

It is difficult to know for certain why legislation does not get enacted. But there are several pieces of information that can be the basis of reasonable inferences. One of these is that, according to a February 2011 Kaiser poll, an overwhelming majority of Americans—72 percent—supported guaranteed insurance for people with preexisting conditions. Yet only Massachusetts managed to implement it. If states are not delivering guaranteed insurance, it is not because the electorate likes that state of affairs. Contrast the law at issue in Lopez: it was obvious that nothing prevented states from banning handguns near schools, because more than forty of them already had such laws.

Massachusetts is the only state that managed to expand health insurance in the way that the new federal statute does. It has been very successful: less than 3 percent of the state’s population was uninsured by 2008, compared with 14 percent before implementation. The state embarked on that project with some unusual advantages. The number of uninsured persons was relatively low when the policy was adopted. Many of the uninsured were eligible for Medicaid. The percentage of the population carrying employer-sponsored coverage, along with per capita income, was unusually high, creating a larger tax pool. The level of insurance was already quite good, and so the transition was not an enormous lurch. A recent study describes the comparative obstacles faced elsewhere:

Other states will start with very different baseline benefits generally available. For example, some states have a high penetration of high-deductible plans; others are dominated by one or two insurers with a particular set of benefits; and still others have a range of insurance products with significant differences in benefit levels. Requiring comprehensive benefits similar to Massachusetts in these states would likely entail requiring many who currently have insurance to change or upgrade their plans in order to comply. Employers would have to consider upgrading plans at great expense. This could ultimately jeopardize broader support for a reform program. Conversely, setting the [minimal level of coverage] at the least common denominator plan may leave many without adequate coverage and underinsured.

All of these factors are substantial obstacles to replicating what Massachusetts has done, even if another state’s citizens want to do so.

The precise uncertainty that drives the objection—that it is hard to know when a race to the bottom is happening—is part of the collective action problem. States do not know whether they will be disadvantaged in interstate competition by having welfare-promoting legislation. This deters them from enacting it. Congress does not have this problem.

The Broccoli Objection, as I will call it, rests on several mistakes. One of these is mushing two claims together, so that the weaker one sneakily borrows support from the stronger, but less relevant, one. Yes, government cannot make you eat broccoli. That would violate the constitutional right to bodily integrity that supports, for example, the right to refuse unwanted medical treatment. But there is no such right to economic liberty. The economic claim collapses once it is decoupled from the bodily integrity claim. If Congress has broad authority over the economy, then it can make you buy broccoli.

How scary is that? It is hard to see how such a law could be justified. It would be an abuse of Congress’s broad authority under Morrison, because the law would not be addressing any collective action problem. But this hypothetical is not an objection to the mandate that Congress actually enacted. There are manifest differences between broccoli and health insurance: no one unavoidably needs broccoli; it is not unpredictable when one will need broccoli; broccoli is not expensive; providers are permitted by law to refuse it; and there is no significant cost-shifting in the way it is provided.

Here we come to the Broccoli Objection’s second mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one. Frederick Schauer showed over twenty-five years ago that any slippery slope argument depends on a prediction that doing the right thing in the instant case will, in fact, increase the likelihood of doing the wrong thing in the danger case. If there is no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100 percent, thereby wrecking the economy. Relax! It will not happen. John Hart Ely defended his rejection of substantive due process against the objection that Congress could then ban the removal of diseased gall bladders by noting that such a law could not possibly pass. What he wrote then is remarkably pertinent: “[I]t can only deform our constitutional jurisprudence to tailor it to laws that couldn’t be enacted, since constitutional law appropriately exists for those situations where representative government cannot be trusted, not for those where we know it can.”

Similarly with the Broccoli Objection. The fear rests on one real problem: there are lots of private producers, including many in agriculture, who will lobby to use the coercive power of the federal government to transfer funds from your pockets into theirs. The last thing they want to do, however, is impose duties on individuals, because then the individuals will know that they have been burdened. There are too many other ways to get special favors from the government in a less visible way. So Congress is never going to try to make you eat your broccoli.

On the other hand, you are probably already consuming more high-fructose corn syrup than is good for you. Subsidies for the production of corn have produced huge surpluses of the syrup, which in turn becomes a cheap ingredient for mass-produced food and turns up in a remarkable amount of what you eat. So consumers have to face obesity, diabetes, and dental caries, but no mandate! You and I are paying for this travesty, and it is happening in such a low-visibility way that many of us never realize that Dracula has been paying regular visits. The Broccoli Objection thus distracts attention from the real problem, one that will not be addressed by the action/inaction distinction. If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.

In the context of federalism, slippery slope arguments have an unpleasant history. When it struck down the first child labor law in 1918, the Supreme Court declared—in tones reminiscent of the Broccoli Objection—that if it upheld the law, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.”The decision was overruled in 1941. Our system of government was not destroyed. The real lesson of this episode is that the desire to rein in government power can create a slippery slope of its own, to a state of affairs in which collective action problems go unsolved. What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for two decades. Health care is another context in which the Court is at serious risk of ravaging the lives of large numbers of actual people. In both the child labor and health care contexts, opponents of reform flee from illusory dangers into the jaws of real ones.

If the law’s critics are right, we have an obligation to replace the well-functioning constitutional system we have inherited with one that is radically defective. Marshall was right. A construction that denied Congress the power to choose the most sensible method for carrying out its lawful purposes would be “so pernicious in its operation that we shall be compelled to discard it.”

The Supreme Court rejected the purported “inherent right of every freeman to care for his own body and health in such way as to him seems best” in 1905, in Jacobson v. Massachusetts. The claimant there asserted that mandatory smallpox vaccination violated his rights. It is true that vaccination is an imposition on one’s liberty. Dying of smallpox is also an imposition on one’s liberty.

This implicit libertarianism is pervasive in these arguments against the law, but it is intellectually incoherent, because the argument purports to apply only against the federal government, not the states. It has not been explained where this individual right is supposed to come from—it happens not to be mentioned in the text of the Constitution—or why it does not also invalidate anything that the states might do to force people into insurance pools.

Conclusion

What will the Supreme Court do? There is no nice way to say this: the silliness of the constitutional objections may not be enough to stop these Justices from relying on them to strike down the law. The Republican Party, increasingly, is the party of urban legends: that tax cuts for the rich always pay for themselves, that government spending does not create jobs, that government overregulation of banks caused the crash of 2008, that global warming is not happening. The unconstitutionality of health care reform is another of those legends, legitimated in American culture by frequent repetition.

If the Constitution were as defective as the bill’s opponents claim it is, a regime in which national problems must remain permanently unsolved, why would it deserve our allegiance? The sensible thing to do would be to try to get free of it, to try—by amendment or judicial construction—to nullify its limits so that we can live in a humanly habitable world. To continue to live with such a perverse Constitution would be mindless ancestor worship.

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University and a former Senior Editor of The Yale Law Journal. He gives thanks to Marcia Lehr for research assistance above and beyond the call of duty, and to Ron Allen, Albert Alschuler, Jack Balkin, Bob Bennett, Bernard Black, Thomas Brennan, Steve Calabresi, Anthony D’Amato, Lee Epstein, Calvin Johnson, Simon Lazarus, Steven Lubet, Jason Mazzone, John McGinnis, Jide Nzelibe, Jim Pfander, Martin Redish, Ilya Somin, and Peter Urbanowicz for helpful comments.

A version of this Essay was presented at “Healthcare Reform: The Law and Its Implications,” a seminar of the American Health Lawyers Association, held in Chicago on December 6, 2010. This Essay consolidates and adds to arguments presented in an earlier series of blog posts.